|Office of the Attorney General - State of Texas
October 7, 1999
Ms. Lan P. Nguyen
Dear Ms. Nguyen:
You have asked whether certain information is subject to required public disclosure under the Texas Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 127844.
The City of Houston (the "city") received a request for information which Andy Kahan "as Mayor Lee Brown's crime victims' assistance director . . . wrote to the Texas Board of Pardons and Paroles requesting that parole for Texas Department of Criminal Justice Offender Roger Leroy DeGarmo be denied." In response to the request, you submit to this office for review the information at issue.(1) You claim that the requested information is confidential under section 552.101 of the Government Code in conjunction with section 508.313 of the Government Code.(2) We have considered the exception and arguments you have raised and reviewed the submitted information.
Based on the city's brief to this office and the requestor's letter, we understand that the city did not seek an open records decision from this office within the statutory ten business day deadline. See Gov't Code § 552.301. The city's delay in this matter results in the presumption that the requested information is public. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). In order to overcome the presumption that the requested information is public, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. The applicability of section 552.101 provides such a compelling reason. See Gov't Code § 552.352 (distribution of confidential information is criminal offense).
Section 552.101 excepts from required public disclosure information that is considered confidential by law, either constitutional, statutory, or by judicial decision. This section encompasses information protected by other statutes. Section 508.313 of the Government Code provides:
(a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to:
(1) an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency;
(2) a releasee; or
(3) a person directly identified in any proposed plan of release for an inmate.
This provision accords confidentiality to the records of the Board of Pardons and Paroles. Open Records Decision No. 190 at 2 (1978); see also Attorney General Opinion H-427 (1974); Open Records Decision No. 33 (1974). You have identified the information at issue as "'other correspondence' considered to be privileged and confidential by law under section 508.313 of the Government Code." However, section 508.313 does not make confidential records in the custody of the city. Thus, the submitted responsive letter signed by Mr. Kahan is not confidential pursuant to section 508.313 of the Government Code. Since you have not raised an applicable exception for the information, we conclude that the information must be released to the requestor.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Ref.: ID# 127844
Encl: Submitted documents
cc: Mr. Ward Larkin
1. You have also submitted to this office information that apparently was sent for informational purposes only. In this ruling, we do not address the public disclosure of that information.
2. You also state the city "has learned that Mr. Kahan has disclosed the content of his letter to a member of the press who quoted his letter in a newspaper article." However, the Public Information Act requires that "[p]ublic information made available under [section 552.007(a)] must be made available to any person." Gov't Code § 552.007 (prohibiting selective disclosure of information to public), 552.001 (act liberally construed in favor of granting a request for information).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US